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Army Court of Criminal Appeals overturns my client’s rape convictions and sets aside his sentence due to CID’s violation of appellant’s 4th Amendment right to silence.

Recently, I represented Army Specialist (SPC) Burnside in his appeal of his court-martial conviction for three specifications of rape of his wife and one specification of assault consummated by a battery.  In this court-martial appeal, I submitted a brief in support of his case and I argued in person in front of his service appellate court, the Army Court of Criminal Appeals (ACCA).  On 6 August 2015, the written opinion in United States v. Burnside was published by ACCA and I learned that they ruled in my client’s favor, overturned the convictions of rape and set aside the sentence.  This result was the right result based on the government’s utter disregard for my client’s 4th Amendment right to remain silent.  The facts leading up to this case were that SPC Burnside’s wife called the military police one night alleging that SPC Burnside had physically assaulted her.  SPC Burnside was questioned by the police and initially waived his right to remain silent.  SPC Burnside adamantly stated that he would not provide a written statement to the police, but that he would have a conversation with them about what happened.  During his conversation with the military police investigator, SPC Burnside mentioned that he and his wife had sexual intercourse the night of the alleged physical scuffle.  At this point, the investigator thought that he should turn SPC Burnside over to the Army Criminal Investigation Division (CID) because the offense of rape was in the purview of CID, not the military police.  Therefore, the military police investigator left SPC Burnside and went to call CID.  The CID agent told the investigator to advise SPC Burnside that he was suspected of raping his wife and re-advise him of his right to remain silent and his right to obtain an attorney.  The investigator returned to SPC Burnside and did this.  At this point, SPC Burnside invoked his right to remain silent.  A CID agent then came to get SPC Burnside and transported him to the CID office.  Once there, the agent informed SPC Burnside that because another law enforcement agency read him his rights the first time, CID was required to read him his rights again.  Upon re-advising SPC Burnside of his rights, SPC Burnside waived his right to silence and spoke to the CID agent about what happened.  He still refused to provide a written statement even though he was asked multiple times.  Eventually, the CID agent ended the interview and called SPC Burnside’s supervisor and asked him to pick him up at around 2030.  The supervisor came to the office to get SPC Burnside and was told that they had to wrap some things up with SPC Burnside.  While waiting in the lobby of CID for SPC Burnside, the supervisor, an Army Sergeant overheard the agents telling SPC Burnside that things would be easier for him if he just told them what happened that night.  He also overheard SPC Burnside tell the agents that he was tired, didn’t want to talk and was done.  The agents then told the supervisor to go home and that he would be called again when SPC Burnside was ready for pickup.  Somewhere between 2100 that night and 0500 in the morning, SPC Burnside finally provided a written statement to CID that was used against him during his court-martial.  During the court-martial process, SPC Burnside’s defense counsel moved to suppress his statement due to the improper actions of the CID agents.  The military judge did not suppress the statement.  ACCA held that military judge erred in not suppressing this statement and that this error was to the prejudice of my client, SPC Burnside.  ACCA held that CID absolutely violated SPC Burnside’s 4th Amendment rights when they told him that his original invocation of his right to remain silent at the military police office was invalid and that they would have to read him his rights again.  ACCA held that CID should have honored his original invocation of his right to remain silent and certainly should not have eventually pulled a written statement out of SPC Burnside when he adamantly stated that he would not provide one.  The Army Court of Criminal Appeals, after reading my brief and listening to my oral argument on behalf of SPC Burnside, made the right call and overturned my client’s rape convictions.  While sexual assault in the military is being dealt with under scrutiny these days, servicemembers cannot be stripped of their constitutional rights.  This appeal was a win for my client and I am here to represent you if you are in a similar situation.  However, as I have warned in past blogs, if you are suspected of committing a crime like SPC Burnside was, do not speak to anyone besides your lawyers.  If you are read your rights, say “I don’t want to say anything. I want a lawyer.”  Call today if you or your loved one is facing a court-martial or needs to appeal one.  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

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